Cavazos v. Garza et al

Filing 4

ORDER: Granting 2 Motion for Leave to Proceed in forma pauperis; Denying 3 Motion for Appointment of Counsel; and Directing US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison tr ust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Defendants are Ordered to reply to Plaintiff's Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). Signed by Judge Michael M. Anello on 4/3/2013. (Order electronically transmitted to Secretary of CDCR, Jeffrey Beard) (Pro Per Package Prepared) (All non-registered users served via U.S. Mail Service)(leh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT CAVAZOS, CDCR #J-26206, Plaintiff, 12 Civil 12cv3087 MMA (MDD) No. ORDER: 16 (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING INITIAL PARTIAL FILING FEE AND GARNISHING BALANCE FROM PRISONER’S TRUST ACCOUNT PURSUANT TO 28 U.S.C. § 1915(a); 17 [Doc. No. 2] 13 14 15 vs. 18 19 20 21 (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL PURSUANT TO 28 U.S.C. § 1915(e)(1); Mr. GARZA, CDCR Correctional Officer; Mr. PAYAN, CDCR Correctional Officer; Mr. FLORES, CDCR Correctional Officer, [Doc. No. 3] AND 22 23 Defendants. 24 25 26 (3) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) Robert Cavazos (“Plaintiff”), a prisoner currently incarcerated at Sierra 27 Conservation Center in Jamestown, California, and proceeding pro se, has filed a civil 28 rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff claims various Calipatria 1 12cv3087 MMA (MDD) 1 State Prison officials violated his Eighth Amendment rights while he was incarcerated 2 there in September and October 2010, by refusing to move him to another cell after he 3 reported a serious water leak. Plaintiff claims Defendants further refused to provide 4 him with dry linens and clothing, forcing him at one point to sleep “nearly naked 5 under [his] bed.” (Compl. at 3.) When Defendants again refused to move him four 6 days later and after another rain storm, Plaintiff slipped and fell in the water which has 7 accumulated in his cell, injuring his leg, elbow, and back. (Id. at 4.) Plaintiff seeks 8 general, compensatory and punitive damages. (Id. at 7.) Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); 9 10 instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 11 U.S.C. § 1915(a) [Doc. No. 2], as well as a Motion for Appointment of Counsel 12 pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 3]. 13 I. MOTION TO PROCEED IFP 14 All parties instituting any civil action, suit or proceeding in a district court of 15 the United States, except an application for writ of habeas corpus, must pay a filing 16 fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s 17 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 18 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 19 However, a prisoner granted leave to proceed IFP remains obligated to pay the entire 20 fee in installments, regardless of whether his action is ultimately dismissed. See 28 21 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 22 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 23 (“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of 24 the trust fund account statement (or institutional equivalent) for the prisoner for the 25 six-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 26 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 27 trust account statement, the Court must assess an initial payment of 20% of (a) the 28 average monthly deposits in the account for the past six months, or (b) the average 2 12cv3087 MMA (MDD) 1 monthly balance in the account for the past six months, whichever is greater, unless 2 the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 3 institution having custody of the prisoner must collect subsequent payments, assessed 4 at 20% of the preceding month’s income, in any month in which the prisoner’s 5 account exceeds $10, and forward those payments to the Court until the entire filing 6 fee is paid. See 28 U.S.C. § 1915(b)(2). In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 7 8 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. 9 Andrews, 398 F.3d at 1119. His trust account statement shows an average monthly 10 balance of $79.31, average monthly deposits of $52.50, and a balance of $80.01 in his 11 account at the time of filing. Based on this financial information, the Court GRANTS 12 Plaintiff’s Motion to Proceed IFP [ECF Doc. No. 2] and assesses an initial partial 13 filing fee of $15.86 pursuant to 28 U.S.C. § 1915(b)(1). However, the Secretary of the Department of Corrections and Rehabilitation, or 14 15 his designee, shall collect this initial fee only if sufficient funds in Plaintiff’s account 16 are available at the time this Order is executed pursuant to the directions set forth 17 below. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 18 prohibited from bringing a civil action or appealing a civil action or criminal judgment 19 for the reason that the prisoner has no assets and no means by which to pay the initial 20 partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding 21 that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a 22 prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds 23 available to him when payment is ordered.”). The remaining balance shall be 24 collected and forwarded to the Clerk of the Court pursuant to the installment payment 25 provisions set forth in 28 U.S.C. § 1915(b)(1). 26 II. 27 28 MOTION FOR APPOINTMENT OF COUNSEL Plaintiff requests appointment of counsel because he is “untrained in the law,” expects that “complexities of legal issues will arise,” and he will face “obstacles in 3 12cv3087 MMA (MDD) 1 2 obtaining ... evidence” to support his claims. See Pl.’s Mot. at 5. Nevertheless, “[t]here is no constitutional right to appointed counsel in a § 1983 3 action.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. 4 Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust 5 Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute 6 right to counsel in civil proceedings.”) (citation omitted). Federal courts do not have 7 the authority “to make coercive appointments of counsel.” Mallard v. United States 8 District Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in 9 U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 10 Plaintiff is correct to note that districts courts do have discretion, however, 11 pursuant to 28 U.S.C. § 1915(e)(1), to “request” that an attorney represent indigent 12 civil litigants upon a showing of “exceptional circumstances.” See Agyeman v. 13 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 14 1525. “A finding of the exceptional circumstances of the plaintiff seeking assistance 15 requires at least an evaluation of the likelihood of the plaintiff’s success on the merits 16 and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 17 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting 18 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. 19 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 20 The Court agrees that any pro se litigant “would be better served with the 21 assistance of counsel.” Rand, 113 F.3d at 1525 (citing Wilborn, 789 F.2d at 1331). 22 However, so long as a pro se litigant, like Plaintiff in this case, is able to “articulate 23 his claims against the relative complexity of the matter,” the “exceptional 24 circumstances” which might require the appointment of counsel do not exist. Id. 25 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court denied 26 appointment of counsel despite fact that pro se prisoner “may well have fared 27 better-particularly in the realms of discovery and the securing of expert testimony.”). 28 Plaintiff’s Complaint demonstrates his ability to articulate essential facts 4 12cv3087 MMA (MDD) 1 supporting his Eighth Amendment claims. Thus, at least at this initial pleading stage 2 of the case, the Court finds he appears to have an adequate grasp of the facts 3 supporting his case as well as the relatively straightforward Eight Amendment issues 4 involved. See Terrell, 935 F.2d at 1017. In fact, as discussed below, Plaintiff’s 5 Complaint alleges facts sufficient to survive the initial screening required by 28 6 U.S.C. §§ 1915(e)(2) and 1915A. Thus, because Plaintiff has not satisfied the 7 stringent standards required for an appointment of counsel under 28 U.S.C. 8 § 1915(e)(1), Plaintiff’s Motion for Appointment of Counsel [ECF Doc. No. 3] must 9 be DENIED without prejudice at this time. 10 11 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) The PLRA also obligates the Court to review complaints filed by all persons 12 proceeding IFP and by those, like Plaintiff, who are “incarcerated or detained in any 13 facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of 14 criminal law or the terms or conditions of parole, probation, pretrial release, or 15 diversionary program,” “as soon as practicable after docketing.” See 28 U.S.C. §§ 16 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua 17 sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail 18 to state a claim, or which seek damages from defendants who are immune. See 28 19 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 20 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 21 2010) (discussing 28 U.S.C. § 1915A(b)). 22 “[W]hen determining whether a complaint states a claim, a court must accept as 23 true all allegations of material fact and must construe those facts in the light most 24 favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see 25 also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 26 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In 27 addition, courts “have an obligation where the petitioner is pro se, particularly in civil 28 rights cases, to construe the pleadings liberally and to afford the petitioner the benefit 5 12cv3087 MMA (MDD) 1 of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz 2 v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). The court may not, however, 3 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 4 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and 5 conclusory allegations of official participation in civil rights violations are not 6 sufficient to withstand a motion to dismiss.” Id. As currently pleaded, the Court finds Plaintiff’s allegations sufficient to survive 7 8 the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).1 See 9 Lopez, 203 F.3d at 1126-27. Accordingly, the Court further finds Plaintiff is entitled 10 to U.S. Marshal service on his behalf. See 28 U.S.C. § 1915(d) (“The officers of the 11 court shall issue and serve all process, and perform all duties in [IFP] cases.”); 12 FED.R.CIV.P. 4(c)(3) (“[T]he court may order that service be made by a United States 13 marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis 14 under 28 U.S.C. § 1915.”). 15 IV. CONCLUSION AND ORDER 16 Good cause appearing therefor, IT IS HEREBY ORDERED that: 17 1. 18 19 20 21 Plaintiff’s Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) [Doc. No. 3] is DENIED without prejudice. 2. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] is GRANTED. 3. The Secretary of the California Department of Corrections and 22 Rehabilitation, or his designee, shall collect from Plaintiff’s prison trust account the 23 initial filing fee assessed in this Order, and shall forward the remainder of the $350 24 filing fee by collecting monthly payments from Plaintiff’s account in an amount equal 25 to twenty percent (20%) of the preceding month’s income and shall forward payments 26 to the Clerk of the Court each time the amount in the account exceeds $10 in 27 1 28 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12[] motion that [a defendant] may choose to bring.” Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). 6 12cv3087 MMA (MDD) 1 accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY 2 IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION. 3 4. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey 4 Beard, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 5 942883, Sacramento, California, 94283-0001. 6 IT IS FURTHER ORDERED that: 7 5. The Clerk shall issue a summons as to Plaintiff’s Complaint [ECF Doc. 8 No. 1] upon Defendants and shall and forward it to Plaintiff along with a blank U.S. 9 Marshal Form 285 for each Defendant. In addition, the Clerk shall provide Plaintiff 10 with a certified copy of this Order and a certified copy of his Complaint and 11 summons so that he may serve Defendants. Upon receipt of this “IFP Package,” 12 Plaintiff is directed to complete the Form 285s as completely and accurately as 13 possible, and to return them to the United States Marshal according to the instructions 14 provided by the Clerk in the letter accompanying his IFP package. Upon receipt, the 15 U.S. Marshal shall serve a copy of the Complaint and summons upon Defendants as 16 directed by Plaintiff on the USM Form 285s. All costs of service shall be advanced 17 by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). 18 6. Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint 19 within the time provided by the applicable provisions of Federal Rule of Civil 20 Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be 21 permitted to “waive the right to reply to any action brought by a prisoner confined in 22 any jail, prison, or other correctional facility under section 1983,” once the Court has 23 conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 24 1915A(b), and thus, has made a preliminary determination based on 25 the face on the pleading alone that Plaintiff has a “reasonable opportunity to prevail on 26 the merits,” the defendant is required to respond). 27 28 7. Plaintiff shall serve upon the Defendants or, if appearance has been entered by counsel, upon Defendants’ counsel, a copy of every further pleading or 7 12cv3087 MMA (MDD) 1 other document submitted for consideration of the Court. Plaintiff shall include with 2 the original paper to be filed with the Clerk of the Court a certificate stating the 3 manner in which a true and correct copy of any document was served on Defendants, 4 or counsel for Defendants, and the date of service. Any paper received by the Court 5 which has not been filed with the Clerk or which fails to include a Certificate of 6 Service will be disregarded. 7 8 IT IS SO ORDERED. DATED: April 3, 2013 9 10 Hon. Michael M. Anello United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 12cv3087 MMA (MDD)

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